Academic Freedom in CUNY

The Need for Faculty Committees

Academic Freedom and CUNY

An argument for the creation of a Faculty Committee on Academic Freedom

Philip A. Pecorino, Ph.D.,

Professor of Philosophy,

Social Sciences Department, Queensborough Community College, CUNY

2006

Why should CUNY College Faculty create a Committee on Academic Freedom at each college?

Reasons:

So many colleges and even CUNY colleges already have such committees so there must be a good reason for them to exist.
It is better to have one than not to have one just in case issues should arise or events require a review by faculty.
Not having one gives the impression that faculty have little of no interest in their Academic Freedom. This would encourage violations of that freedom and transgressions into the domains of faculty prerogatives referenced protected by Academic Freedom.
“Eternal Vigilance is the price of Freedom”- Thomas Jefferson
Given the current climate that undermines institutional autonomy and the threats to weaken individual Academic Freedom of faculty by the institution itself, the present fate of Academic Freedom for faculty rests on the faculty willingness to take effective action in a number of ways:

A. The assertion and defense of the basic principles of Academic Freedom.

Each college and university should have its faculty create a committee on academic freedom whose responsibility it is to monitor conditions and make appropriate recommendations for policies and practices and actions. Senior faculty with interest and experience with governance and shared governance should serve on such bodies. The faculty should receive such reports from the committee on Academic Freedom and exercise their collective responsibility through the mechanisms of shared governance to effectuate those actions that will protect and support and further Academic Freedom. Among the charges to such a committee would be to accept and act on the three suggestions immediately below.

Some Practical Suggestions from Donna R. Euben , “Academic Freedom And Professorial Speech”, February, 2004 http://www.aaup.org/AAUP/protectrights/legal/Updates-speeches/prof-speech.htm

1. Institutional policies should be established by faculty and administration to protect academic freedom against governmental constraints and threats. Such policies could address the acceptance of classified research grants and contracts, access to personal computer files, and sharing of information with external agencies and library and student records. Where pertinent policies already exist, they should be reviewed and refined, with faculty governance bodies playing a central role in that review process; where such policies exist, they should be widely publicized at each institution.

2. Faculty should establish and maintain regular contact with the offices and individuals charged with interpreting and applying relevant policies, and faculty organizations should keep their colleagues and the campus community well informed.

3. Faculty and administration should build substantially closer ties. Such relationships should be built between faculty and the offices of the dean of students or the chief student personnel administrator, the director of international student affairs, the campus police, and the university legal general counsel. These offices are likely to have heightened responsibilities in tense times and may be helpful in anticipating potential trouble spots. Moreover, in the performance of their regular functions, they may assist in reducing potential risks to academic freedom.

Reporting on the state of Academic Freedom to the more general community of educators, scholars and publishers.

The creation and participation in the institutions and mechanisms for Shared Governance. Local Committees on Academic Freedom should make known for better or worse the condition of Academic Freedom at their institutions. This exercise of collective responsibility in involving the greater community of educators should bring additional leverage to bear on bringing about successful resolutions to local conflicts.

The education of the public. They must have the knowledge that the professoriate is akin to that of law or medicine or architecture wherein its members are professionals and exercise autonomy in decision making concerning what they do and how they do it. Faculties do not want the government or corporations or even their own administrations (CEO’s) making decisions that are properly within their own province and their prerogatives alone.

Academic Freedom: What is it?

Academic Freedom as a concept and a practice has undergone some evolution over the last century through a variety of events and court cases in which the phrase has been uttered and resolutions unfolded and this has often involving court action at the very highest level. Through all of that what is clear is that Academic Freedom exists only, as one would think, within the academic setting and as part of the common good and to further the common good. Beyond this, whatever it is, it is not recognized by institutions, organizations or courts to further the interests of individuals or of individual institutions.

It exists as a right based on the high value placed by society on the need for knowledge and truth and for the dissemination and transmission of that knowledge and truth.

Many times tenure is associated with academic freedom but tenure is simply and just a mechanism to provide for that which is of primary value and that is for the production and dissemination of knowledge and truth. Tenure is but a means to an end as it provides for security for those who will pursue and disseminate truth as unfettered as possible from concern about or the interference of those who have other values predominating their deliberations and actions, such as administrative officers of the institution, government officials, corporate executives and special interest groups within the public.

As noted when set out in the 1915 AAUP Declaration of Principles Academic Freedom has been applied to both the teacher and to the learner. Most often the cases that bring the concept to the attention of the public have to do with faculty members who have done or said or published something with negative consequences to their positions resulting from that. So the AAUP directed its attentions from 1915 to 1940 more to the right of academicians to make extramural utterances than to their right to research and to teach. There were many cases of faculty demoted or dismissed because their actions, affiliations and utterances were found displeasing or improper by the owners or principle financial supporters of colleges or by members of the board of trustees or presidents.

The AAUP sought to secure recognition for the institutional autonomy of academic institutions from non-academic sources of influence and pressure that could and would lead to actions against members of the faculty. While making a significant statement and argument for the need for Academic Freedom, now in retrospect, it is unfortunate that the AAUP in its 1915 Declaration of Principles set out a rather narrow concept. At that time it was presented that Academic Freedom involved the following domains of action:

Freedom of inquiry and research

Freedom to teach

Freedom with extramural utterances

In that 1915 Declaration of Principles Academic Freedom was seen as a necessary feature for an academic institution which itself was seen of great instrumental value to society and the servant of the common good.

It must be noted that there are alternative notions of Academic Freedom and some are more basic and comprehensive than that of the AAUP statements. They are premised on a not altogether, but significantly, different concept of the nature of the Academy itself and its relation to society.

If, as he notes, freedom is the right to do or forbear some action then Bernard Baumrin offers the most general definition of the concept of Academic Freedom “as the right of an academic to do or forbear what in his judgment is worth doing or forbearing related to his academic role(s).” --Bernard H. Baumrin, “Foundations of Academic Freedom and Tenure”, Annals of Scholarship: Metastudies of Humanities and Social Sciences, Volume 2, No. 1, 1981, pp.31-42.

In contrast the AAUP has offered definitions and approaches with a more narrow view that focuses on speech acts, research and teaching, places it within the context of the academy and makes institutional autonomy a necessary condition for individual Academic Freedom.

Baumrin presents three different conceptions of the Academy that in turn engender three different concepts of Academic Freedom and their corresponding notions of tenure, which in each case is but a means to insure that freedom. Institutions with differing fundamental self conceptions will have different purposes and, thus, will have different ideas of how freedom is to be conceived and exercised and what would be needed to sever the faculty member from the institution.

The Platonic view, as Baumrin terms it, would see academic institutions as setting out their own visions and worldviews and moral codes and sending out followers of that view as graduates. Such are the cases with religious institutions and some private academies. Faculty in such institutions could be thought of as are members of a cult and their freedom in such an institution would be the freedom to spread the word. Tenure would be severed for failure to keep and spread the faith or the official declarations of what is known and true and valued by those who set the charter of and govern the institution.

The Cartesian view, as Baumrin terms it, of the Academy sees it as serving the interests of society and following the lead of society and its morality. The university thus is to produce good citizens and academicians are to serve as one of many role models. Faculty are to transmit what is valued by the current political and social order. Tenure in such a conception is akin to a long term contract that is always made dependent on the good behavior of instructors. Tenure may be severed for failure to uphold the norms of the current moral, political and social order, for crimes and moral turpitude.

The Kantian view, as Baumrin terms it, sees the Academy as existing for the production of knowledge and truth which would be or should be of the very highest order of value for society, realized and expressed by society in different ways and with different levels of awareness and appreciation over time. The Kantian academy produces, preserves, and transmits truth regardless of its current social need or value for either the particular truth or for truth itself. Tenure is granted to those “who have the proven ability to create, transmit or preserve knowledge, at least what is thought to be knowledge by those participating in the tenure granting process.” Tenure in this view amounts to a life long license to pursue knowledge and truth. The grounds for breaking tenure in a Kantian Academy include transgressions of the pursuit and transmission of knowledge and truth such as plagiarism, fabrications, data manipulation or falsification, knowingly transmitting or disseminating the false as if it were true and so on.

Baumrin prefers the Kantian model as he sees the basic principles of academic life as including the idea that the purpose of tenure is to permit and encourage “the winnowing and creative departure from past knowledge”. This is often likely to set those who advance knowledge and truth and seek its wide dissemination as against the current norms of the social and political order with implications both direct and indirect for the prevailing and predominant moral norms and views. Thus, Academic Freedom and tenure are needed to protect the advance of knowledge and truth and their dissemination.

Baumrin rightly points out that the narrow approach to Academic Freedom taken by the AAUP that restricts the idea of Academic Freedom as serving society’s interests is the weakest possible view as it is most limited, constricted by current public policies and interests and is thus both of the moment and, perhaps, forfeiting on obtaining the knowledge that would be of greatest value in some future under changed circumstances and alterations in basic visions and ordering of social values. Be that as it may, the AAUP view of Academic Freedom is the predominant view now operative in society and in the thinking of legislatures and jurists and both academic administrators and faculty.

Before moving on with an exposition and consideration of the most popular current notions of academic freedom it is important to note that where there is a basic conception of the mission of the college or university and the role of its faculty held on the part of the administration that is quite different from that of its faculty there may arise problems when their respective interests are in conflict with one another. Indeed, the basic interests of both faculty and administrations should be the same and that is fulfilling the mission and purpose of the college as is commonly conceived. In a similar manner conflicts can arise when those at a particular college hold a different fundamental idea of its mission as compared to that of those managers of the university system of which that college is a branch.

So the more common understanding of Academic Freedom links it to the freedom to teach, research and write, and publish without fear. This is the echoing of the presentation of the AAUP 1915 Declaration of Principles in which Academic Freedom involves 1. Freedom of Inquiry and research, 2. Freedom to teach and 3.Freedom with extramural utterances.

In that document it was noted that the authority in an academic institution is with the Board of Trustees. Where they are holding a fiduciary responsibility for a public institution they must serve the public and the public trust and then the public interest. They set out appointments for positions in such a manner that people of proper qualification will be attracted to fill them and serve in them with dignity and a sense of independence as professionals. Further, it was maintained, as central to the argument advanced, that education exists as a cornerstone of the structure of society. As such educators needed the freedom and protection of that freedom to do the research and teaching needed by society for the common good. Following from this it was noted that it is the responsibility of faculty to serve the public trust and NOT either the interests of the Board of Trustees or the President of the institution.

As universities exist to fulfill the following functions:

Promote inquiry and advance knowledge

Provide instruction to students

Develop experts for public service

the conclusion was that universities need the academic freedom of their faculty to insure the proper fulfillment of those functions, those functions being themselves of instrumental value to society in promoting the common good.

In the AAUP 1940 Statement of Principles of Academic Freedom and Tenure there was set out that academic institutions exist in service of the common good. They are to provide for the free search for truth and therefore there must exist the freedom to conduct research and to advance truth and knowledge.

In 1970 the AAUP added a set of Interpretative Comments to the 1940 Statement of Principles of Academic Freedom and Tenure and under Academic Freedom proved the following:

Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.

Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject.[2] Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.[3]

College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.[4]

The concept and right to Academic Freedom has been recognized several times over by the Supreme Court who have held that Academic Freedom is to be respected for academic institutions and faculty to determine:

Who will teach- appointment , promotion and tenure

What will be taught- curricula development and construction

How it will be taught- pedagogy- instructional design-modality of instruction

To whom it will be taught- who will be admitted to study – admissions policies and programs

So, Academic Freedom exists within the confines of the academic world and also within its practices and standards and norms. It exists for faculty, only within that context within the academic community and amongst professional academicians. However, Academic Freedom is not absolute license; it is circumscribed by appropriate academic judgments by individual academicians and by the collectives of academicians acting on a departmental or college wide level to make decisions about what to teach, how to teach it, who will teach and who will be taught and matters related to those four basic activities, decisions and responsibilities.

Academic Freedom is not license for faculty to do as they please.

But we do not conceive academic freedom to be a license for uncontrolled expression at variance with established curricular contents and internally destructive of the proper functioning of the institution.

Clark v. Holmes, 474 F.2d 928, 931 (7thCir. 1972), cert. denied, 411 U.S. 972 (1973).

Academic freedom is not a license for activity at variance with job related procedures and requirements, nor does it encompass activities which are internally destructive to the proper function of the university or disruptive to the education process. .... Academic freedom does not mean freedom from academic responsibility to students, colleagues and the orderly administration of the university.

Stastny v. Central Washington University, 647 P.2d 496, 504 (Wash.Ct.App. 1982), cert. denied, 460 U.S. 1071 (1983).

The Academic Freedom of the individual member of the faculty is often thought about as the freedom to make extramural utterances and there have been many cases brought to the attention of the public involving such. Such acts of academicians are protected as a special concern of the First Amendment Right. The other senses in which an individual faculty member has a right to Academic Freedom is within the academy when participating in the acts of deciding who will teach, what to teach and how it will be taught and to whom. Within those provinces the right of an individual faculty member is not absolute. Each member of the faculty must act within the parameters and according to the norms as established by professional educators and colleagues. Such parameters and norms as set through the collective actions of the faculty who have the collective responsibility as professional educators to do such. When so acting within those parameters and norms the individual faculty member is to be afforded freedom from the interference of those outside of the academy.

Recognition for Academic Freedom

From 1915 to 1940 Academic Freedom was conceived as a freedom that was identified with and rested upon Institutional Autonomy and that autonomy was a necessary condition for the Academic Freedom of individual faculty members.    From 1940 to the present there have been hundreds of learned societies and academic institutions that have endorsed the AAUP conception of Academic Freedom.   To the North the Association of Universities and Colleges in Canada also affirms Academic Freedom

The AUCC recognizes that the academic freedom of individual members of universities and the institutional autonomy accorded to the institutions themselves involve the following major responsibilities to society: to conduct scholarship and research according to the highest possible standards of excellence so that society may benefit; within the constraints of the resources available to them, to ensure high quality education to as many academically qualified individuals as possible; to abide by the laws of society; and to account publicly through Boards and audits for their expenditure of funds. (1986 )

http://www.aucc.ca/_pdf/english/statements/1986/aucc_academic_freedom_e.pdf.

Across the globe the International Association of Universities affirms Academic Freedom, University Autonomy and Social Responsibility (April, 1998)   http://www.unesco.org/iau/p_statements/af_statement.html

Convinced that human development and the continued extension of knowledge depend upon the freedom to examine, to enquire and to question, and that Academic Freedom and University Autonomy are essential to that end; that moreover the University does not exist for itself or even for the sake of knowledge but for the benefits it brings to Humankind and to Society by virtue and in view of its social utility;

Emphasizing that neither Academic Freedom which encompasses the freedom to enquire and to teach as well as the freedom of students to learn, nor University Autonomy are privileges but that they are the basic and inalienable conditions which enable the University as an institution of scholarship and learning, as too its individual members to meet, fully to assume and optimally to fulfill the responsibilities Society confides to both;

In 1997 UNESCO endorsed the concept of Academic Freedom and the rights and freedoms of higher-education teaching personnel: their individual rights and freedoms: civil rights, academic freedom, publication rights, and the international exchange of information. (see

http://portal.unesco.org/en/ev.php-URL_ID=13144&URL_DO=DO_TOPIC&URL_SECTION=201.html )

US Supreme Court Decisions

The legal system has offered protection for academic freedom. Lower courts have often interpreted the Constitution narrowly. Recently legal decisions appear to recognize a conflict between institutional academic freedom and individual academic freedom. In the era of the rise of Communism and the fear entertained by the American public of that ideology there were a variety of challenges made to both individual faculty and to institutions concerning their loyalties. Academic positions were denied and others lost due to political challenges from outside of the academy.  Politicians sought to impose restrictions on colleges and professors alike. The federal courts accepted and dealt with cases of this type. Even the Supreme Court first recognized the right of academic freedom as a part of the First Amendment. Both institutional and individual academic freedom were involved and protected by decisions of courts. Recently, many academic freedom cases involve individuals accusing colleges and universities of infringing upon academic freedom. Some lower courts have interpreted the meaning of academic freedom to emphasize institutional academic freedom at the expense of individuals. Many argue that institutional autonomy ought not take precedence over the individual rights of professors and students to speak, write, teach, and learn freely.

In 1957 Sweezey v New Hampshire the US Supreme Court with Justice Earl Warren writing for the court sets out that Academic Freedom is a First Amendment right of an individual member of a faculty to some form of Academic Freedom.     In Sweezey Justice Felix Frankfurter set out the component of academic freedom for institutions and individuals as relating to the needed autonomy of the institution from outside intrusion, particularly from government. Justice Frankfurter noted a statement from South Africa that identified “the four essential freedoms of a university to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”   This established the sphere in which Individual and Institutional Academic Freedom operates. Many see this decision as clearly establishing that academic freedom exists for institutions. It might also be interpreted as indicating that academic freedom exists as shared by universities, professors and students, thus leaving at issue what happens should there be a conflict amongst those three as has often occurred and typifies the conflict in most cases finding there way to the courts since 1970.

To the extent that academic freedom is entitled to constitutional protection, three constituencies have legal standing to invoke it: universities, professors, and students. When conflicts among those constituencies inevitably arise, judges will evaluate and balance competing interests from public policy perspectives. A balance of competing interests means that academic freedom for professors is more likely to be recognized and protected in some contexts (publication by a faculty member of a controversial article on a matter of public concern) than in others (extraneous classroom comments by a teacher, not pertinent to the subject matter of the course). Now more than ever, professors’ claims to academic freedom can’t be based on blanket assertions of unquestioned "rights" or prerogatives; they must be grounded instead on carefully crafted, widely respected, and consistently practiced professional and ethical standards.’ Gary Pavela , A Balancing Act Competing Claims for Academic Freedom, Academe, Nov./Dec. 2001 ,

http://www.aaup.org/publications/Academe/2001/01nd/01ndpav.htm

Thus, Academic Freedom for academic institutions and faculty operates when they are to determine

Who will teach- appointment , promotion and tenure

What will be taught- curricula

How it will be taught- pedagogy- instructional design-modality of instruction

To whom it will be taught- who will be admitted to study – admissions policies and programs

Court cases have made it clear that such freedom does not extend into non-academic matters such as land use.

In 1967 in the case of Keyishan v Board of Regents again the US Supreme Court, with Justice William J. Brennan writing that principle decision, affirmed that Academic Freedom is set out as a special concern of the First Amendment and made it clear that it applied to individual faculty as holders of first amendment rights.

What has changed about it?

So from 1940 to 1970 or so the courts were emphasizing and recognizing the right of the individuals and institutions to be protected from interference and particularly from the state.

Starting in the 1970’s there has been a motion towards support for the Academic Freedom of the educational institutions vs the Academic Freedom of individual faculty.

Constitutional principles of academic freedom have developed in two stages, each occupying a distinct time period and including distinct types of cases. The earlier cases of the 1950s and 1960s focused on faculty and institutional freedom from external (political) intrusion. These cases pitted the faculty and institution against the State. Since the early 1970s, however, academic freedom cases have focused primarily on faculty freedom from institutional intrusion. In these latter cases, faculty academic freedom has collided with institutional academic freedom. Donna R. Euben , Academic Freedom Of Individual Professors And Higher Education Institutions: The Current Legal Landscape”, May 2002, http://www.aaup.org/AAUP/protectrights/legal/Updates-speeches/AF-profs-inst.htm

In the 1978 case of the Regents of the University of California v Bakke the decision set out that it is the Academic Freedom of the institution to determine who is to be admitted to study

In 1981 in the case of Widmer v Vincent in the decision the US Supreme Court again cited the four essential areas for academic decision making in which there is Academic Freedom in setting out that the Institution has the Academic Freedom to determine when and where there will be permitted free speech on campuses. Justice Paul Stevens stated that educational decisions based on the content of speech “should be made by academicians, not by federal judges.”

There currently exists a conflict between Institutional Autonomy and Individual Academic Freedom rights arising from the tension between the academic freedom of individual faculty in order to be free of restraints from administrations and the freedom of the institution itself (Institutional Autonomy) to be free of interference from government bodies whether of the legislature or the judicial branches.

The conflict often appears over the basic decisions that need to be made.   Who decides?

What is to be taught?

How it is to be taught?

How grades are to be assigned?

Who is to be taught?

The issue has not yet been decided in any clear manner by the US Supreme Court.   Lower court decisions are varied. Some decisions (e.g., Urofsky v Gilmore) have gone so far as to decide that the AAUP principles of individual academic freedom are not part of the academic freedom protected by the first amendment but the freedom of the institution itself is so protected.

The AAUP is currently stressing that when claims of Institutional Academic Freedom threaten Individual Academic Freedom of the faculty then the AAUP must emphasize the 1915 Declaration of Principles and with them the basic idea that the functioning of a university or college depends on the Academic Freedom of independent teachers and scholars.

The tension between institutional and individual academic freedom continues to play out in the judicial arena and these cases below indicate a variety of such tensions, including:

claims of administrations against the State (the graduate assistant cases before the NLRB);

claims of students against faculty and administrations (Axson-Flynn v. Johnson);

claims of professors against administrations (Schrier v. University of Colorado);

claims of students and faculty members together against administrations (Crue v. Aiken);

claims of professors, administrations and students against the State (the Solomon Amendment cases).

claims of professors, against other professors, or administrations or against the State

Academic Freedom has been recognized by the U.S. Supreme Court as a First Amendment right of professors in public colleges and universities.(1) Federal Courts have agreed. (2) These decisions have encompassed both teaching and research. "A professor's rights to academic freedom and freedom of expression are paramount in the academic setting," one court has observed. At the same time, the courts recognize, that academic freedom is set within parameters set by the academic community itself which uses a variety of criteria such as relevance to teaching or research in reviewing the exercise of such freedom.(3)

(1) For example, Sweezy v. New Hampshire, 354 U.S. 234 (1957); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Regents of Univ. of Michigan v. Ewing, 474 U.S. 214 (1985); Univ. of Wisconsin v Southworth, 529 U.S. 217 (2000).

(2) For example,. Dow Chemical Co. v. Allen, 672 F.2d 1262 (7th Cir. 1982); United States v. Microsoft, 162 F.3d 708 (1st Cir. 1998); Vanderhurst v. Colo. Mountain College, 208 F.3d 908, 913 (10th Cir. 2000).

(3) For court cases, see Hardy v. Jefferson Community College, 260 F.3d 671 (6th Cir. 2001); Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir.), cert. denied, 534 U.S. 951 (2001); Kracunas v. Iona College , 119 F.3d 80 (2d Cir. 1997).

Legal Protections of Academic Freedom for Individual Professors

There are at least three sources of legal protection for the academic freedom of individuals: the U.S. Constitution, contract law, and the "custom" of the academy.-Donna R. Euben , "Academic Freedom And Professorial Speech", February, 2004 http://www.aaup.org/AAUP/protectrights/legal/Updates-speeches/prof-speech.htm

A. Constitutional Law

One source of legal protections for the academic freedom of individual professors is the First Amendment of the U.S. Constitution. The federal constitution was designed to regulate the exercise of governmental power only, and therefore, virtually all of the constitutional restrictions pertaining to academic freedom and free speech apply only to public employers, such as state colleges and universities, and do not generally limit private employers, such as private higher education institutions.

The U.S. Supreme Court has repeatedly held that academic freedom is a First Amendment right of professors. ¹ At least six federal appellate courts have expressly followed Supreme Court rulings, recognizing that the First Amendment protects the academic freedom of state-employed professors. The Second, Sixth and Ninth Circuits have applied the First Amendment right of academic freedom to protect professors' work in the classroom. ² The Seventh and First Circuits have held that a professor's First Amendment right of academic freedom extends to research as well as to teaching.³ The Eighth Circuit has ruled that the First Amendment protects professors as scholars.4

Only the Fourth Circuit has ignored the Supreme Court's recognition of individual academic freedom as a "special concern" of the First Amendment.⁵ However, even the Urofsky majority itself seemed to concede that individual professors' constitutional rights might be implicated in the application of Virginia's statute prohibiting the viewing of sexually explicit material on state-owned or -leased computers.⁶

In addition, the Third Circuit is currently considering the First Amendment right of academic freedom of professors in a case challenging the enforcement of the Solomon Amendment to law schools,⁷ and the Tenth Circuit is determing the scope of that right in speaking out on institutional matters for a professor who also served as department chair. ⁸

Some state constitutions also provide protections to professors at private colleges.⁹

B. Contractual Rights

Internal sources of contractual obligations that protect the academic freedom of faculty may include institutional rules and regulations, letters of appointment, faculty handbooks, and, where applicable, collective bargaining agreements. Academic freedom rights are often explicitly incorporated into faculty handbooks, which are sometimes held to be legally binding contracts under state law.¹⁰

C. Academic Custom and Usage

Academic freedom may also be protected as part of "academic custom" or "academic common law." The joint 1940 Statement of Principles on Academic Freedom and Tenure (hereafter 1940 Statement) constitutes a "professional 'common' or customary law of academic freedom and tenure."¹¹ As the District of Columbia Circuit observed in Greene v. Howard University: "Contracts are written, and are to be read, by reference to the norms of conduct and expectations founded upon them. This is especially true of contracts in and among a community of scholars, which is what a university is. The readings of the market place are not invariably apt in this non-commercial context." ¹²

The Relationship Between Academic Freedom and the First Amendment: A Snapshot View

The professional concept of academic freedom for faculty in higher education is set forth in the 1940 Statement of Principles on Academic Freedom and Tenure, which has been endorsed by over 180 scholarly and professional organizations and is incorporated into many college and university faculty handbooks.

Academic freedom rights are not coextensive with First Amendment rights, although courts have recognized a relationship between the two. The First Amendment protects expression on all sorts of topics and in all sorts of settings from regulation by public institutions, including public colleges and universities. Academic freedom, on the other hand, addresses rights within the educational contexts of teaching, learning, and research both in and outside the classroom--for individuals at private as well as at public institutions. Accordingly, in addition to the First Amendment and some state laws, academic freedom has been recognized and protected in higher education by academic policy and practice.

The rights that flow from the professional concept of academic freedom are not coextensive with First Amendment rights, although some courts have recognized a relationship between the two.

·         The First Amendment safeguards expression from regulation by public institutions, including public colleges and universities, expression on all sorts of topics and in all sorts of settings.

·         The professional definition of academic freedom, on the other hand, addresses rights within the educational contexts of teaching, learning, and research both in and outside the classroom--for individuals at private as well as at public institutions.

Although the U.S. Supreme Court has consistently recognized that academic freedom is a First Amendment right, the scope of the First Amendment right of academic freedom for professors remains unclear. -----Donna R. Euben , “Academic Freedom Of Individual Professors And Higher Education Institutions: The Current Legal Landscape”, May 2002, http://www.aaup.org/AAUP/protectrights/legal/Updates-speeches/AF-profs-inst.htm

Threats to Academic Freedom

Recent Cases illustrate some of the areas in which Academic Freedom is threatened.

Curriculum Choices-e.g.,

a.) Class Content (Axson-Flynn v. Johnson) religious sensibilities

b.) Class Content (Widmar v Vincent-1981) No need for equal time or balance

c.) Class Content (Linnemeir v Board of Trustees, Indiana University, 2001) choice of play

Teaching Methods (Vega v Miller NY Maritime College,1994) language “clustering” exercise

Classroom Safety-banning firearms (University of Utah v Mark L. Shurtleff , 2002)

Freedom of Inquiry and Research after 9-11

Encryption Codes and other research considered as security or IP matters

Computer Use by Faculty-restrictions

Access to the Internet- restrictions

Faculty Webpages-disclaimers and restrictions

Faculty email Privacy Issues-lack of privacy-no reasonable expectations for privacy

Off the Campus-extramural utterances-matters of “public concern” vs matters of personal interest

claims of administrations against the State (the graduate assistant cases before the NLRB at NYU and at Brown);

claims of students against faculty and administrations (Axson-Flynn v. Johnson); religious sensibilities

claims of professors against administrations (Schrier v. University of Colorado); relocation of medical school

claims of students and faculty members together against administrations (Crue v. Aiken); mascot defamatory to native peoples-baring faculty and students from speaking with prospective students

claims of professors, administrations and students against the State (the Solomon Amendment).

claims of professors, administrations and students against the State ( the ABR-Academic Bill of Rights)

Such threats to Academic Freedom do exist and may be characterized as arising from both sources within and outside of educational institutions.

Sources threatening Academic Freedom from outside of the academy

State

Corporations

Lobbyists

Communities

Judges

Taxpayers

Interest Groups-conservative groups urging the ABR

Sources threatening Academic Freedom from inside the academy-

     1. From the Administration of the academic institution in a variety of ways:

·        Attacks on Tenure are attacks on Academic Freedom as tenure exists as a means to secure Academic Freedom which is itself in service of the common good. So the following efforts on the part of administrators are a threat to Academic Freedom when they seek the creation of alternatives to tenure in the form of :

limited appointments

Post tenure review

Non-tenured positions

Part time faculty- adjuncts

·        Usurpation of faculty prerogatives in making the effective decisions concerning:

What is to be taught?

How it is to be taught?

How grades are to be assigned?

Who is to be taught?

2. From the appointment by governmental bodies of presidents and chancellors of public colleges and universities of people who are not academics also threatens both academic freedom and the very mission of such educational institutions.

3. From the appointment by governmental bodies of members of the boards of trustees of public colleges and universities of people who are not academics also threatens both academic freedom and the very mission of such educational institutions.

4. From direct governmental sponsorship of research educational programs are another form of threat to the autonomy of educational institutions and thus to academic freedom.

5. From the Corporate sponsorship of research educational programs are another form of threat to the autonomy of educational institutions and thus to academic freedom.

       6. From the Faculty

a.       Failure to be vigilant

b.      Failure to act collectively

                                                   i.      Failure to defend their freedom

                                                 ii.      Failure to participate in shared governance -   Faculty participation in governance and in the mechanisms for preserving Academic Freedom has been weakening due to a number of factors:

·        Faculty indifference

·        Administrative actions to circumvent or dismantle means of shared governance

·        Increased use of contingent faculty

The Market Economy Influence on Higher Education and Academic Freedom

Perhaps the greatest present threats to Academic Freedom are those that result from the transformation of institutions of higher education within and to a market economy. When such a change in the conception and management of the educational institution occurs it subjects the educational institution to the mechanism, problems and vagaries of the market economy. The institution will operate with the values of economy and efficiency in the ascendant positions. The values of knowledge and truth and education itself will recede from their positions of primacy.   The provision of instruction is reconceived of as a supply of labor that will provide for the delivery of a service and this leads to an increase in provisional employees; the contingent labor force of non-tenure track and adjunct appointments. Little is expected of such employees in terms of the advancement of knowledge.

The market economy will have such matters as health care provision impinge upon budgeting of educational programs. With a view to serving and responding to the needs and demands of the market place there will be curricula changes not based on academic considerations but on factors operative in the present market. With a market oriented approach the corporate model for management takes a firm hold in higher education and that is a direct threat to the autonomy of faculty as professional educators and scholars.

The extravagant salaries paid to CEO’s in the corporate world begin to appear in higher education and with it a diminishing of the valuing of faculty and a widening of the gap between administration and faculty which also threatens Academic Freedom as it threatens Shared Governance and the attractiveness of the profession itself.

In a market economy members of boards of trustees of educational institutions come from the market place and they will reflect the values of that sector of society from whence they come and whose interests they serve. Those interests are not often consonant with those of higher education. There is the obvious and rather scandalous failure on the part of members of Boards of Trustees of public institutions of higher education to fulfill their fiduciary responsibilities in light of the continual decrease in the economic support of the public sector for those public colleges and universities. Many have accepted the market place model whereby the recipients of goods and services pay for them with their own resources.

Universities have become like unto corporate entities. Cary Nelson has provided this:

We are faced, then, with several overlapping meanings for the notion of "the corporate university":
1) universities that perform contract services for corporations.
2) universities that form financial partnerships with corporations.
3) universities that design curricula and degree programs to serve corporate hiring needs.
4) universities that condone corporate influence over curriculum and program development by accepting corporate funded programs, fellowships, and faculty lines.
5) universities that adopt profit-oriented corporate values.
6) universities that adopt corporate style management and accounting techniques.
7) universities that effectively sell portions of their enterprise to corporations.
8) universities that sell faculty or staff time to corporations.
9) universities whose faculty members are co-opted by corporations that hire them as high-paid consultants and fund their research.
10) universities that engage corporations to market the products of faculty/staff labor.
11) universities that instill corporate culture in their students and staff.
12) universities whose top level of governance——boards of regents or trustees——is dominated by executive officers of corporations.

   http://www.cary-nelson.org/nelson/corpuniv.html

CUNY and Academic Freedom

CUNY has made several clear affirmations of Academic Freedom. Mong its statements and claims to this effect are:

1. Statement of the Council of Presidents on Academic Freedom November 2, 1973 http://portal.cuny.edu/cms/id/cuny/documents/level_3_page/Academic_Freedom.pdf

2.        The statement of Vice Chancellor Frederick Shaffer to the UFS (11-30-04).

3.        The statement of Vice Chancellor Selma Botman to the UFS (9-28-04)

4.        The statement of Chairman of the CUNY BOT, Benno C. Schmidt, Jr., in September of 2001.

"...[T]he university, true to its academic ideals, must treat each member of the community as a unique individual worthy of respect, to be judged solely by his or her actions, intellect, and character. A university does not stereotype its members; it does not permit them to be put into categories based on suspicion, ignorance or prejudice; it does not deny to any of its members the full rights of academic freedom and engagement."

5.        CUNY Message from Chancellor Matthew Goldstein on Academic Freedom 10-2005

At CUNY, our commitment to academic freedom is well established and firmly held. As a university that prides itself on diversity and access to opportunity, we hold in the highest regard policies and principles that guarantee an open and tolerant academic exchange. That exchange is vigorously protected and defended.

At CUNY, as at other reputable institutions of higher education, academic freedom informs the entire academic community: the free exchange of ideas applies to students choosing a course of study, to faculty pursuing scholarly research and teaching, and to institutions admitting students, appointing faculty, and setting standards. A condition of mutual respect enables the existence of this many-faceted scholarly discourse.

Despite these numerous statements of acceptance of and support for Academic Freedom CUNY has the ignominious distinction of having been censured by the AAUP twice and CUNY is quite possibly and most regrettably on the verge of yet a third act of censure for violations of Academic Freedom.

Past Cases

the AAUP journal ACADEME issues with information on the case

1. City University of New York, Fiscal Exigency

1977, v.63, 60–81

1977, v.63, 119

1983, v.83, n.5, 11a

2.QueensboroughCommunity College dismissals

1973, v.59, 46–54

1973, v.59, 364

1978, v.64, 171

Present Cases

CUNY is now under review by the AAUP who will be examining a number of activities of CUNY and cases including the dismissal of an adjunct at York College and then the AAUP report added to that:

Two subsequent and disturbing developments, one involving the non-reappointment of an adjunct faculty member at City University's John Jay College, and the other involving the selection of a department chair at Brooklyn College,

Further, the AAUP has been invited to consider matters related to the actions of the administration of Hunter College.

The current AAUP recommendation from its Committee A :

Committee A has recommended that the general secretary inform the City University of New York administration that he has opened an inquiry into conditions of academic freedom in the City University system, and that he may appoint a new committee to conduct an investigation if he finds the university insufficiently responsive to our concerns. Committee A will report again on the City University of New York to the annual meeting in 2006.—AAUP Committee A , June 2005.

CUNY affirms academic freedom and yet there are in many units of CUNY incursions and infringements of that freedom in the area of pedagogy.

Some CUNY administrators are setting out limitations concerning pedagogic methods and pedagogic decision making.

Some CUNY administration is setting out the conditions for entry into classes of CUNY when it sets the "passing" grades or scores on a variety of instruments.   It also changes the passing or minimum scores based on criteria other than involving concerns for improving the efficacy of instruction.

Some CUNY administrators are going so far as to actually prohibit modes of instruction at some CUNY colleges. Such prohibitions vary from one college to another based on considerations that are not pedagogic at all. The most common consideration for overriding the use of academic and pedagogic criteria is one of financial cost.

Instructional Modalities:

•       Group Learning
•       Problem based learning
•       writing intensive instruction
•       blended instruction
•       asynchronous instruction

    4. Some CUNY administrators are going so far as to make decisions as to what instructional tools will be provided for faculty use such as with course management programs .

When an administration of an academic institution, with no involvement of the faculty or only a token consultation with the faculty, is making decisions that deal with pedagogy that situation can readily be construed as a violation of Academic Freedom. Where it is not seen as such is usually due to any one of a number of factors including a failure of faculty to accept and fulfill their professional responsibilities to be involved in such decision making or because they have been excluded from doing so for so long that they no longer believe that it is their province.

What is being done to preserve and protect Academic Freedom in CUNY? Well, there are some CUNY units that have a group dealing with Academic Freedom.   The University Faculty Senate has a standing committee on Academic Freedom.   Several colleges have committees.

Baruch College -local academic freedom committee in the bylaws.

Medgar Evers College -

Lehman College-

Hunter College - special committee

Bronx Community College-Senate itself

Brooklyn College has a committee on College Integrity

Some are interested in having a group:

1 LaGuardia College
2 Queensborough College
3 NYCT College .
4 John Jay College would convene one if a particular case or event justified it.
5 Kingsborough Community College

NO INFORMATION

1 Queens College
2 BMC College
3 College of Staten Island
4 Hostos College
5 York College
6 Graduate School.

A Model for a Committee on Academic Freedom:

Committee on Academic Freedom, Governance and Integrity of the
Medgar Evers College Faculty Senate (10-2005)

Purpose:

The purpose of this Standing Committee is to insure that academic freedom; good governance and integrity are encouraged, protected and strengthened at the College.

Functions:

(1)     The Committee shall review the status of academic freedom, governance and integrity at the College, and issue a report to the Faculty Senate each semester with its recommendations.

(2)     The Committee shall receive confidential testimony from faculty and others concerning alleged violations of academic freedom, failures of governance and breaches of integrity.

(3)     The Committee shall provide information and guidance to faculty concerning their rights, duties and recourse concerning violations of academic freedom, governance and integrity.

(4)     The full Committee shall be convened by the Chair as needed, but no less than once per semester. Meetings shall be governed by Robert’s Rules of Order, most recent edition.

Membership:

Members of the Committee and its Chair shall be appointed by the Chair of the Faculty Senate, in consultation with the Executive Committee. The Committee shall have representation from all of the Instructional and Non-instructional Departments of the College, as defined in the MEC Governance Plan, to the greatest extent possible. The Chair of the Committee may, from time to time, appoint a maximum of four ex officio members without vote. Members shall serve at the pleasure of the Chair of the Faculty Senate, in consultation with the Executive Committee.

Conclusion

Given the current climate that undermines institutional autonomy and the threats to weaken individual Academic Freedom of faculty by the institution itself, the present fate of Academic Freedom for faculty rests in good part on the faculty willingness to take effective action in a number of ways:

The assertion and defense of the basic principles of Academic Freedom.

Each college and university should have its faculty create a committee on academic freedom whose responsibility it is to monitor conditions and make appropriate recommendations for policies and practices and actions. Senior faculty with interest and experience with governance and shared governance should serve on such bodies. The faculty should receive such reports from the committee on Academic Freedom and exercise their collective responsibility through the mechanisms of shared governance to effectuate those actions that will protect and support and further Academic Freedom. Among the charges to such a committee would be to accept and act on the three suggestions immediately below.

Some Practical Suggestions –from Donna R. Euben , “Academic Freedom And Professorial Speech”, February, 2004 at   http://www.aaup.org/AAUP/protectrights/legal/Updates-speeches/prof-speech.htm

1. Institutional policies should be established by faculty and administration to protect academic freedom against governmental constraints and threats. Such policies could address the acceptance of classified research grants and contracts, access to personal computer files, and sharing of information with external agencies and library and student records. Where pertinent policies already exist, they should be reviewed and refined, with faculty governance bodies playing a central role in that review process; where such policies exist, they should be widely publicized at each institution.

2. Faculty should establish and maintain regular contact with the offices and individuals charged with interpreting and applying relevant policies, and faculty organizations should keep their colleagues and the campus community well informed.

3. Faculty and administration should build substantially closer ties. Such relationships should be built between faculty and the offices of the dean of students or the chief student personnel administrator, the director of international student affairs, the campus police, and the university legal general counsel. These offices are likely to have heightened responsibilities in tense times and may be helpful in anticipating potential trouble spots. Moreover, in the performance of their regular functions, they may assist in reducing potential risks to academic freedom.

Reporting on the state of Academic Freedom to the more general community of educators, scholars and publishers.

The creation and participation in the institutions and mechanisms for Shared Governance. Local Committees on Academic Freedom should make known for better or worse the condition of Academic Freedom at their institutions. This exercise of collective responsibility in involving the greater community of educators should bring additional leverage to bear on bringing about successful resolutions to local conflicts.

The education of the public. They must have the knowledge that the professoriate is akin to that of law or medicine or architecture wherein its members are professionals and exercise autonomy in decision making concerning what they do and how they do it. Faculties do not want the government or corporations or even their own administrations (CEO’s) making decisions that are properly within their own province and their prerogatives alone.

The lot or plight of the next generations depend on what faulty do in providing knowledge and truth for its members to work with and transmit to others and so faculty need to have their freedom to conduct research and experiment with thoughts and to disseminate and teach that which they produce. This process of furthering thought and demonstrating free thinking is of both utilitarian and pragmatic value and must be preserved both in and of itself and for its consequences.

Protection for Academic Freedom, particularly for faculty, will rest with both legal action, through court decisions influenced by persuasive arguments developed by faculty and their advocates such as the AAUP, and with political action, with a strategy that aims to educate the public concerning the issues and the values involved.

For this the faculty must realize their collective responsibilities as professionals to preserve and protect defend and foster that which is their need to be able to do that which they are responsible to do: research, teach and publish.

Tenure and economic security are both needed for all faculty, full time and part time, to be able to deliver the knowledge needed by students and by society. Faculty must work to defend both academic freedom and tenure.

Justice William O. Douglas wrote a half century ago:

The real enemies of freedom are not confined to any nation; they are everywhere;

they flourish where injustice, discrimination, ignorance, superstition, intolerance,

and arbitrary power exits. We cannot afford to inveigh against them abroad, unless

we are alert to guard against them at home

Thomas Jefferson wrote that

            “Eternal vigilance is the price of liberty.”

We who want to have Academic Freedom and continue to exercise it need to be eternally vigilant and guard against the enemies to that freedom both outside and inside of our academy.

END
==============================================================================

Academic Freedom References and Bibliography

a. International

REPORT OF THE FIRST GLOBAL COLLOQUIUM OF UNIVERSITY PRESIDENTS

http://www.columbia.edu/cu/president/communications%20files/globalcolloquium.htm

International Association of Universities on Academic Freedom, University Autonomy and Social Responsibility http://www.unesco.org/iau/p_statements/af_statement.html

b. National - AAUP Statements

AAUP "General Declaration of Principles" in 1915 ( http://www.campus-watch.org/article/id/566 )

AAUP Statement on Academic Freedom (1940) with Interpretive Comments(1970) http://www.aaup.org/statements/Redbook/1940stat.htm

c. Local CUNY Statements

CUNY Statement of the Council of Presidents on Academic Freedom November 2, 1973 http://portal.cuny.edu/cms/id/cuny/documents/level_3_page/Academic_Freedom.pdf

CUNY A Message from Chancellor Matthew Goldstein on Academic Freedom 10-2005

d. Other Sources Cited or Used:

Bernard H. Baumrin, “Foundations of Academic Freedom and Tenure”, Annals of Scholarship: Metastudies of Humanities and Social Sciences, Volume 2, No. 1, 1981, pp.31-42.

David M. Rabban , Academic Freedom, Individual or Institutional? Academe, Nov./Dec. 2001

Donna R. Euben , “Academic Freedom Of Individual Professors And Higher Education Institutions: The Current Legal Landscape”, May 2002, http://www.aaup.org/AAUP/protectrights/legal/Updates-speeches/AF-profs-inst.htm

Donna R. Euben , “Annual Legal Update: "Hot" Topics in Higher Education Law”
March 31, 2003 http://www.aaup.org/AAUP/protectrights/legal/Updates-speeches/baruch-update-2003.htm

Donna R. Euben , “Annual Legal Update: "Hot" Topics in Higher Education Law”
April 19, 2004 http://www.aaup.org/AAUP/protectrights/legal/Updates-speeches/baruch-update-2004.htm

Donna R. Euben , “Annual Legal Update: "Hot" Topics in Higher Education Law”
March 19, 2005 http://www.aaup.org/AAUP/protectrights/legal/Updates-speeches/Baruch-update.htm

Donna R. Euben , “Academic Freedom And Professorial Speech”, February, 2004 http://www.aaup.org/AAUP/protectrights/legal/Updates-speeches/prof-speech.htm

Donna R. Euben , “Political And Religious Belief Discrimination On Campus:
Faculty and Student Academic Freedom and The First Amendment”. March, 2005, http://www.aaup.org/AAUP/protectrights/legal/Updates-speeches/belief-discrim.htm

Gary Pavela , “A Balancing Act Competing Claims for Academic Freedom”, Academe, Nov./Dec. 2001 http://www.aaup.org/publications/Academe/2001/01nd/01ndpav.htm

afree.htm

e. Books

Richard Hofstadter, Academic Freedom in the Age of the College, Columbia University Press (1961).
Walter P. Metzger, Academic Freedom in the Age of the University, Columbia University Press (1961).
Virginia Davis Nordin, "The Contract to Educate: Toward a More Workable Theory of the Student-University Relationship", 8 J. Coll. & Univ. Law 141 (1981-82).
Katheryn Katz, "The First Amendment's Protection of Expressive Activity in the University Classroom: A Constitutional Myth", 16 Univ. Calif. Davis Law Review 857 (1983).
Walter P. Metzger, "Profession and Constitution: Two Definitions of Academic Freedom in America", 66 Texas Law Review 1265 (1988).
Matthew W. Finkin, "Intramural Speech, Academic Freedom, and the First Amendment", 66 Texas Law Review 1323 (1988).
J. Peter Byrne, "Academic Freedom", 99 Yale Law Journal 251, 252-253 (1989).
Walter P. Metzger, "The 1940 Statement of Principles on Academic Freedom and Tenure", 53 Law & Contemporary Problems 3 (1990).

William W. Van Alstyne, "Academic Freedom and the First Amendment ...", 53 Law & Contemporary Problems 79 (1990).
==============================================================================

Some U.S. Supreme Court Cases Related to Academic Freedom:

ADLER v. BOARD OF EDUCATION, 342 U.S. 485 (1952) http://laws.findlaw.com/us/342/485.html

WIEMAN v. UPDEGRAFF, 344 U.S. 183 (1952): http://laws.findlaw.com/us/344/183.html

BARENBLATT v. UNITED STATES, 360 U.S. 109 (1959): http://laws.findlaw.com/us/360/109.html

KEYISHIAN v. BOARD OF REGENTS, 385 U.S. 589 (1967) : http://laws.findlaw.com/us/385/589.html

CONNICK v. MYERS, 461 U.S. 138 (1983) : http://laws.findlaw.com/us/461/138.html

UNIVERSITY OF PENNSYLVANIA v. EEOC, 493 U.S. 182 (1990) : http://laws.findlaw.com/us/493/182.html

Federal Circuit Court Cases

UROFSKY v GILMORE, : http://laws.findlaw.com/4th/981481p.html

(Urofsky Decision: Academic Freedom Bites the Dust, by Marjorie Heins (2001): http://www.ncac.org/cen_news/cn81academicfreedom.html)

Brown v. Armenti : http://laws.findlaw.com/3rd/001587.html

COHEN v BROWN UNIV. : http://laws.findlaw.com/1st/952205.html

LINNEMEIR, DAN v. BIRCK, MICHAEL J. : http://laws.findlaw.com/7th/013002.html

DAMBROT v CENTRAL MICH. UNIV. : http://laws.findlaw.com/6th/950168p.html

VEGA v STATE UNIVERSITY OF, : http://laws.findlaw.com/2nd/009214.html

EDWARDS v CA UNIV PA, : http://laws.findlaw.com/3rd/981936p.html

JEFFRIES v HARLESTON : http://laws.findlaw.com/2nd/937876.html

GARY L. WEBB, ET AL. v BOARD OF TRUSTEES OF BALL STATE UNIV., ET AL., : http://laws.findlaw.com/7th/981317.html

COHEN v SAN BERNARDINO VALLEY No. 9555936 : http://laws.findlaw.com/9th/9555936.html

UNIV GRT FALLS v NLRB, : http://laws.findlaw.com/DC/001415a.html

MARCUS B. FELDMAN v CHUNG-WU HO AND BD. OF TRUSTEES OF SOUTHERN ILLINOIS UNIV.: http://laws.findlaw.com/7th/974243.html

KRACUNAS v IONA COLLEGE : http://laws.findlaw.com/2nd/967128.html

FISHER v VASSAR COLLEGE :http://laws.findlaw.com/2nd/947737.html

==============================================================================

AAUP Committee A report on CUNY

June 6, 2005

CITY UNIVERSITY OF NEW YORK

The report of the investigating committee concerns actions by the central administration of the City University of New York to remove an adjunct lecturer from his classes in the midst of a semester and to deny him further teaching assignments. The administration took these actions upon learning that the adjunct, who was then in his seventh year of part-time teaching at the City University's York College, had been indicted with two others by the federal government on charges of assisting a terrorist organization. The charges related to work he had done as an Arabic translator employed by the chief subject of the indictment, an attorney for a convicted terrorist. An officer of the City University's central administration telephoned the York College administration to convey the decision to suspend the adjunct for the remainder of the semester (for which he was paid) and to bar him from further teaching. Nothing in writing about the decision was sent to the adjunct or to the relevant York College administrators, however. The adjunct, who had accepted an oral offer from his chair to teach in the fall, learned only with the approach of that semester that he would not be allowed to teach the courses that had been scheduled for him.

Through the grievance procedures in the faculty collective bargaining agreement, the adjunct contended that he had been improperly deprived of his right to reappointment for the fall. The case went to arbitration, and the arbitrator denied the grievance on grounds that under the bargaining agreement failure to issue notice of non-reappointment by the indicated date did not automatically provide a right of retention.

The Association's investigating committee, in its report that was published while the trial of the adjunct on criminal charges was in process, concluded that the City University administration had suspended the adjunct with no claim of immediate harm threatened by his continuance and with none of the procedural protections called for in AAUP-supported standards. The committee also concluded that the administration's refusal to honor the adjunct's appointment for the fall semester was tantamount to a summary dismissal in violation of the 1940 Statement of Principles on Academic Freedom and Tenure.

Two months after the publication of the Association's report, the jury in the federal trial found the adjunct and the two others guilty of the charges against them. Sentencing by the judge is currently scheduled for late in September, and appeals are fully expected if the convictions are permitted to stand.

While the trial was still going on, representatives of Committee A met with the City University's chancellor, executive vice chancellor, and general counsel for a discussion of the case. Committee A's representatives emphasized that the activities which were the subject of the trial had no bearing on the adjunct's work at York College, and. the chancellor offered assurance, should the adjunct be acquitted of the criminal charges against him, that he would comply with a recommendation from York College calling for his reinstatement to the faculty. Subsequent to the adjunct's conviction in trial court, this assurance has been reiterated.

Discussions through telephone conversations and correspondence with the administration about deficiencies that the investigating committee found in City University policies and practices have continued in recent weeks. Some progress can be reported.

With regard to notice of non-reappointment, in the arbitration of the York adjunct's case the administration has maintained that failure to notify an adjunct by the stated official deadline was not subject to arbitral remedy because the grievance. Arbitration procedure did not apply to an adjunct whose term of appointment had expired. The administration now acknowledges that lack of timely notice to an adjunct is subject to arbitration for potential remedy, thus changing from a position that no remedy is warranted to acceptance of a procedure for determining what remedy would be due under the specific circumstances.

With regard to the availability of arbitration in the case of an adjunct suspended within the term of an appointment, the administration's initial position was that this is an issue to be worked out through collective bargaining. The administration now agrees that suspended adjuncts are covered by the collective bargaining grievance procedure and thus have access to arbitration.

Finally, with regard to suspension and the procedure for imposing it, the administration declined to accept the AAUP-recommended "immediate harm" standard for suspending a faculty member that an earlier City University administration had adopted, but it granted that suspending an adjunct, even with continuance of salary, is a serious action. While the decision to remove the York adjunct from further teaching had been made and allowed to stand without any faculty involvement, the administration, noting that procedures relating to suspension are governed by the collective bargaining agreement, now states that it will consider any changes the faculty union wishes to propose.

Committee A recognizes these positive developments. Nonetheless, the committee remains keenly interested in the case of the York College adjunct while legal proceedings have yet to run their course, and while the administration and the faculty union pursue discussion with the aim of strengthening formal protections for adjuncts in the City University. Two subsequent and disturbing developments, one involving the non-reappointment of an adjunct faculty member at City University's John Jay College, and the other involving the selection of a department chair at Brooklyn College, have cast in a new light the administration's claim that the actions against the York College adjunct were not politically motivated. The university's general counsel, in comments on the investigating committee's report, stated that "the chancellor's decisions were motivated in part out of a concern that public confidence would suffer if [the adjunct] were permitted to teach at York College." The emergence of a possible pattern of failure to safeguard the university from political interference in matters of academic appointments has led Committee A to reevaluate the investigating committee's categorical conclusion that the York College adjunct "was suspended or discontinued because of his indictment" rather than because of anticipated public reaction to his indictment.

Accordingly, Committee A has recommended that the general secretary inform the City University of New York administration that he has opened an inquiry into conditions of academic freedom in the City University system, and that he may appoint a new committee to conduct an investigation if he finds the university insufficiently responsive to our concerns. Committee A will report again on the City University of New York to the annual meeting in 2006.

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